MISC 08-383555

October 5, 2010

Sands, J.

DECISION

Plaintiff filed her unverified complaint on September 4, 2008, alleging deeded rights and trespass in a right-of-way located off Tahattawan Road in Littleton, Middlesex County, Massachusetts (the ROW), and seeking, pursuant to the provisions of G. L. c. 240, §§6-10, a determination of rights in such way. [Note 1], [Note 2] On September 29, 2008, Defendants Michael Lelievre and Colleen Lelievre (the Lelievres) filed an Answer and Counterclaim alleging deeded rights, adverse possession, prescriptive rights, and easement rights (including an easement by necessity) in the ROW. Plaintiff filed her Answer to Counterclaim on November 12, 2008. A case management conference was held on November 24, 2008.

On September 25, 2009, Plaintiff filed her Motion for Partial Summary Judgment, together with supporting memorandum, Appendix, and Affidavit of Diane C. Tillotson. The Lalievres filed their Opposition on November 4, 2009, together with supporting memorandum, Appendix, and Affidavit of Erica P. Bigelow. A hearing was held on the summary judgment motion on February 8, 2010, at which time the motion was taken under advisement. Plaintiff filed a Motion to Default Defendant Sherrill Gould on March 4, 2010, which was allowed on April 20, 2010.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Commr of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

I find that the following material facts are not in dispute:

1. By deed dated May 2, 1953, and recorded with the Middlesex South District Registry of Deeds (the Registry) at Book 8088, Page 466, A. Delana Brown and Wilbur M. Brown conveyed property located on the east side of Tahattawan Road to Gordon E. Westby and Janet H. Westby (the First Westby Lot). [Note 3], [Note 4] The southerly boundary of such lot is described as, thence running North 86 [degrees] 43' west by land of the grantors two hundred feet to the point of beginning.

2. By deed dated June 12, 1958, and recorded with the Registry at Book 9267, Page 275 (the Whitcomb Deed), Wilbur M. Brown and Mary H. Brown (the Browns) conveyed property located on the east side of Tahattawan Road and containing 26,814 square feet (the Whitcomb Lot) to Oliver A. Whitcomb and Margaret L. Whitcomb (the Whitcombs). [Note 5] The northerly boundary is described as [t]hence running North 87 [degrees] 58' 30" East by said Brown land one hundred eighty-seven (187) feet to a pipe bound. The Whitcomb Lot was shown as Lot 10 on plan titled Land in Littleton Owned by Wilbur M. Brown and Mary H. Brown dated June 21, 1956 and prepared by Harlan E. Tuttle, Surveyor (the 1956 Plan). [Note 6] The 1956 Plan was recorded with the Registry on June 22, 1956, in Book 8750, Page End. The northerly boundary of the Whitcomb Lot abuts the ROW, but the ROW does not appear on the 1956 Plan. On the 1956 Plan, the Browns are listed as the abutter to the north of the Whitcomb Lot.

3. The Browns subdivided their property as shown on plan titled Land in Littleton Owned by Wilbur M. Brown and Mary H. Brown, dated February 8, 1958, and prepared by Harlan E. Tuttle, Surveyor (the 1958 Plan). [Note 7] The 1958 Plan was recorded with the Registry on February 1, 1960, at Book 9541, Page End.

4. By Agreement with the Town of Littleton dated September 21, 1959, and recorded with the Registry on May 19, 1960, in Book 9597, Page 246 (the Agreement), the Browns agreed to construct the subdivision roadways in accordance with the 1958 Plan. [Note 8]

5. By deed dated September 18, 1973, and recorded with the Registry at Book 12528, Page 104 (the Second Westby Deed), the Browns conveyed property located on the east side of Tahattawan Road and containing 3,136 square feet, to Janet H. Westby (the Second Westby Lot). The Second Westby Deed referenced the 1958 Plan, and the Second Westby Lot was shown on the 1958 Plan as abutting the ROW. [Note 9] The deed contained the language [s]ubject to and with the benefit of easements, restrictions and agreements of record, if any there be, insofar as the same are now in force and applicable.

6. By deed dated October 15, 1973, and recorded with the Registry at Book 12541, Page 24 (the Kotanchik Deed), the Browns conveyed property located on the east side of Tahattawan Road (the Subdivision Land) to James J. Kotanchik and Judith R. Kotanchik (the Kotanchiks). The legal description was as follows:

Beginning at said road at land now or formerly of Charles N. Tuttle; thence

EASTERLY on the wall to land formerly of Edward E. Kimball now or late of Harry W. Knights; thence

SOUTHERLY on said land now or late of Harry W. Knights to an iron pipe in the ground at the cart path; thence

WESTERLY on the Northerly side of said cart path to the road; thence

NORTHERLY on the road to the first mentioned bound.

This deed did not reference the 1958 Plan or the ROW in its legal description, and only referenced the 1958 Plan with respect to excluded parcels that had already been deeded out. [Note 10]

7. By deed dated December 19, 1977, and recorded with the Registry at Book 13356, Page 435 (the Flannery Deed), the Kotanchiks deeded the Subdivision Land to Leo R. Flannery and Jacqueline A. Flannery (the Flannerys). The Flannery Deed did not reference the 1958 Plan in its legal description except for a reference to parcels that had already been deeded out by the Browns.

8. The Flannerys arranged a plan titled Plan of Land in Littleton, Mass. Owned by Jacqueline A. & Leo R. Flannery, dated September 10, 1979, prepared by David W. Perley (the 1979 Plan), and recorded with the Registry on October 11, 1979, as Plan Number 1218 of 1979. The 1979 Plan shows a single lot (Lot A) which consists of a portion of the Subdivision Land. Lot A included a strip of land that provided access to Tahattawan Road located between the Second Westby Lot and the Whitcomb Lot. This strip is consistent with the location of the ROW, but was not referenced as the ROW on the 1979 Plan.

9. The Flannerys conveyed Lot A to Bernard A. Caouette by deed (the Caouette Deed) dated October 11, 1979, and recorded with the Registry at Book 13809, Page 272. [Note 11] The Caouette Deed referenced the 1979 Plan and reserved a right of way for grantors across Lot A (including the ROW) for access to Tahattawan Road. The reserved right of way stated,

Said right of way is intended to be used in common with the grantee for all reasonable purposes of ingress and egress, provided, however, that the grantors, their heirs, executors and assigns, shall share equally with the owner of Lot A the cost of all routine maintenance and repairs to keep the right of way in the same condition as when reserved, reasonable wear and tear excepted, including but not limited to snow removal, as long as the reservation of the right of way remains in force and applicable.

10. By deed dated May 15, 1981, and recorded with the Registry at Book 14294, Page 259, the Flannerys conveyed the Subdivision Land (less all conveyances made prior to that time) to Sherrill R. Gould.

11. By deed dated May 12, 1999, Plaintiff obtained title to the First Westby Lot and the Second Westby Lot (property located at 70 Tahattawan Road, Littleton) from Janet H. Westby and recorded with the Registry at Book 30194, Page 450. [Note 12]

12. By deed dated July 1, 2005, and recorded with the Registry at Book 45525, Page 526, Barbara E. Boothby and Cathy Kristofferson deeded Lot A to the Lelievres (property located at 76 Tahattawan Road, Littleton). [Note 13]

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The central issues in Plaintiffs Motion for Partial Summary Judgment are whether Plaintiff owns fee title to any portion of the ROW by operation of G. L. c. 183, § 58 (the Derelict Fee Statute), and whether the Lelievres hold deeded rights or an easement by estoppel or necessity in the ROW. [Note 14]

[e]very instrument passing title to real estate abutting a way, whether public or private . . . shall be construed to include any fee interest of the grantor in such way . . . , unless (a) the grantor retains other real estate abutting such way . . . , in which case, . . . (ii) if the retained real estate is on the other side of such way . . . , the title conveyed shall be to the center line of such way . . . as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a sideline.

Plaintiff argues that she holds fee title to the ROW by operation of the Derelict Fee Statute. Specifically, Plaintiff claims that when the Browns conveyed the Second Westby Lot in 1973, all of the Browns rights in the ROW transferred to the owner of the Second Westby Lot because the Browns retained no interest in the land on the south side of the ROW (the Whitcomb Lot). The Lelievres contend that the Derelict Fee Statute does not apply because the subdivision shown in the 1958 Plan was never built out. The Lelievres assert that, while the subdivision was entitled to a zoning freeze pursuant to G. L. c. 40A, § 6, such freeze expired by February 26, 1965, and, thus, the roadways identified on the 1958 Plan were void. The Lelievres conclude that because the Subdivision and its roadways were void, the Second Westby Deeds description that referred to the ROW was for convenience only, and fails to trigger the Derelict Fee Statute.

The Derelict Fee Statute sets out an authoritative rule of construction for instruments passing title to real estate abutting a way. Emery v. Crowley, 371 Mass. 489 , 492 (1976); Rowley v. Massachusetts Electric Co., 438 Mass. 798 , 802 (2003). Through the Derelict Fee Statute, the legislature codified common law and mandate[d] that every deed of real estate abutting a way includes the fee interest of the grantor in the wayto the center line if the grantor retains property on the other side of the way or for the full width if he does notunless the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line. Tattan v. Kurlan, 32 Mass. App. Ct. 239 , 243 (1992).

The essence of the Lelievres argument concerning the Derelict Fee Statute is that the Second Westby Deed did not convey title to real estate abutting a way, because such way did not exist. However, the Derelict Fee Statute allows for some flexibility in its application. The Supreme Judicial Court has held that the Derelict Fee Statute applies to real estate, . . . that in fact abuts a public or private [way] . . . or other similar linear monument, regardless of how it is described in the instrument of its conveyance. Rowley v. Massachusetts Electric Co., 438 Mass. 798 , 805 (2003). Moreover, the Derelict Fee Statute applies to a way whether public or private and whether in existence or merely contemplated (so long as it is sufficiently designated . . . .). Tattan v. Kurlan, 32 Mass. App. Ct. 239 , 242-43 (1992) (emphasis supplied).

The key conveyance at issue in the case at bar is the Second Westby Deed, in which the Browns transferred the Second Westby Lot in September 1973. [Note 15] At that time, while the Browns still owned all of the ROW, they did not have an interest in any land to the south of the ROW, as they had previously conveyed the Whitcomb Lot. Additionally, both the Second Westby Deed and the referenced 1958 Plan indicate the ROW as abutting the Second Westby Lot, [Note 16] and the Agreement discussing the ROW was of record. Moreover, following the creation of the Second Westby Lot, the descriptions of the Whitcomb Lots northern boundary and the Second Westby Lots southern boundary account for curb-cutting consistent with the ways shown on the 1958 Plan. Finally, the Browns did not retain any rights in the ROW in the Second Westby Deed. Given that the ROW was contemplated in the Second Westby Deed, pursuant to the Derelict Fee Statute, all of the Browns interest in the ROW was conveyed to Janet Westby, which was later conveyed to Plaintiff in 1999. [Note 17]

As a result of the foregoing, I find that, as between Plaintiff and the Lelievres, Plaintiff owns the fee interest in the ROW under the Derelict Fee Statute. [Note 18] When the Whitcomb Lot was deeded out in June 1958, the Browns owned the abutting land to the north, but it does not appear that the ROW had yet been established or contemplated. Neither the Whitcomb Deed nor the 1956 Plan cited in the Whitcomb Deed reference a roadway abutting the Whitcomb Lot to the north. And while the 1958 Plan was prepared in February 1958, such plan was not recorded until February 1, 1960. As such, it is clear that the Whitcomb Deed does not expressly pass tile abutting a way; moreover, under the facts currently before the court, it does not appear that a way was contemplated as there was nothing either on the ground or in the Registry to indicate as such.

II. Whether Lot A Benefits from an Easement by Estoppel or Necessity in the ROW.

The Lelievres claim that in the event that Plaintiff possesses fee title in the ROW, such rights are subject to an easement by estoppel benefitting Lot A. Plaintiff argues that, as a result of the Second Westby Deed, the Browns failed to retain any interest in the ROW and could not convey rights in a way that they did not possess.

Case law reveals two different theories under which a parcel of land may be conferred with rights in a way under the doctrine of easement by estoppel. The first is based on a recorded plan. See Goldstein v. Beal, 317 Mass. 750 , 755 (1945) (stating that where land situated on a street is conveyed according to a recorded plan on which the street is shown, the grantor and those claiming under him are estopped to deny the existence of the street for the entire distance as shown on the plan.). The second theory states that when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed. Casella v. Sneierson, 325 Mass. 85 , 89 (1949). The Kotanchik Deed, which created the Subdivision Land, does not include a reference to land bounded on the ROW, as shown in the 1958 Plan, or to land that has been subdivided. [Note 19] Moreover, when the Subdivision Land was deeded in October 1973, the subdivision had not been built (and never was). As such, whether Lot A benefits from an easement by estoppel over the ROW depends on whether the Subdivision Land is found to be situated on a street [and/or] conveyed according to a recorded plan on which the street is shown. Goldstein, 317 Mass. at 755.

It is notable that the Kotanchik Deed conveyed the Subdivision Land through the use of a legal description, and not by reference to a recorded plan. This deed only referenced the 1958 Plan to except certain lots from conveyance that had already been deeded out. Specifically, the Kotanchik Deed states: There is excepted from the above described premises so much as has been heretofore conveyed by the following deeds duly recorded with [the Registry]: . . . This conveyance is contrasted with the Second Westby Deed (dated one month earlier), which referenced both the ROW and the 1958 Plan as a part of the legal description. This court cannot conclude that referring to a plan for the purposes of carving out excluded parcels is the same thing as conveying land according to a recorded plan.

When the Caouette Deed for Lot A was recorded in 1979, together with the 1979 Plan, such deed purported to reserve a right of way across the ROW as access to Tahattawan Road. However, as the Browns retained no rights in the ROW following the Second Westby Deed, they could not convey such rights to the Kotanchiks. Accordingly, the Kotanchiks could not convey rights in the ROW to the Flannerys, who themselves had no basis for granting the rights in the ROW as contained within the Caouette Deed. Moreover, the 1979 Plan did not show the ROW and the legal description in the Caouette Deed (the first deed to separate Lot A from the Subdivision Land) did not reference the ROW.

In conclusion, while the lots comprising Lot A were shown as abutting a subdivision roadway in the 1958 Plan, the Kotanchik Deed did not convey the Subdivision Land accordingly to such plan. Additionally, the Browns failed to retain ownership of the ROW to grant such rights to anyone else. In light of the above, I find that the owner of Lot A does not have a right to use the ROW based on a theory of easement by estoppel.

Plaintiff also argues that Lot A does not benefit from an easement by necessity over the ROW. In their Opposition, the Lelievres do not argue that they have an easement by necessity. Rather, they reframe their rights in terms of an easement by estoppel, which, as discussed, supra, does not exist. [Note 20]

An easement by necessity may arise when a common grantor carves out what would otherwise be a landlocked parcel. Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285 , 291 (2005) (citing Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 76-77 (2004)). Typically, such easements refer to rights_of_way presumed . . . when a landowner conveys a portion of his land but still needs access over the transferred property to reach the property he retained. Bedford, 62 Mass. App. Ct. at 77. An easement by necessity may be found if a court can fairly conclude that the grantor and grantee, had they considered the matter, would have wanted to create one. Kitras, 64 Mass. App. Ct. at 291. To infer such intent, the record must demonstrate three factors: (1) a unity of title between the dominant and servient estates, (2) which is severed by conveyance, and (3) necessity aris[es] from that severance, all considered with reference to all the facts within the knowledge of the parties respecting the subject of the grant, to the end that their assumed design may be carried into effect. Id. (citing Orpin v. Morrison, 230 Mass. 529 , 533 (1918)).

While Lot A and the ROW were once held in common ownership by the Browns, the record does not support a finding of necessity as a result of the Second Westby Deed, which, as previously discussed, effectively foreclosed access from Lot A over the ROW to Tahattawan Road. Rather, after the Second Westby Deed, the remaining land of the Browns (which comprised the Subdivision Land following the Kotanchik Deed) had other frontage along Tahattawan Road. In light of the above, I find that owner of Lot A does not have a right to use the ROW based on a theory of easement by necessity.

In light of the above, I ALLOW Plaintiffs Motion for Partial Summary Judgment.

As discussed at oral argument on the summary judgment motion, the parties are not addressing their adverse possession and prescriptive rights claims in this motion. The parties shall attend a status conference on Tuesday, November 9, 2010, at 11:00 A.M. to determine how best to proceed with this case.

Judgment shall issue after all issues have been resolved.

Alexander H. Sands, III

Justice

Dated: October 5, 2010

FOOTNOTES

[Note 1] The ROW consists of approximately 9,700 square feet and is approximately fifty-feet wide by 180 feet long. For reference, the ROW is shown as the Disputed Area on the attached Sketch Plan. The current use and composition of the ROW is not included in the summary judgment record.

[Note 2] Plaintiff filed her Motion to Amend Complaint on September 15, 2009, adding a count for adverse possession (which is not a part of the summary judgment motion). At a status conference on December 3, 2009, Plaintiff indicated that she had filed a similar claim in Middlesex Superior Court, and that a decision would be made as to the status of this claim after the decision on summary judgment.

[Note 3] This deed references a plan dated April 27, 1953, which is not included in the summary judgment record. However, the parties do not dispute the ownership lines of the First Westby Lot.

[Note 4] Neither party questions A. Delana Brown and Wilbur M. Browns initial ownership of all land relevant to this summary judgment motion.

[Note 5] The summary judgment record indicates, but does not include a copy of the deed, that title to the Browns property was transferred from Wilbur M. Brown and A. Delana Brown to Wilbur M. Brown and Mary H. Brown by deed dated January 7, 1956, and recorded with the Registry at Book 8649, Page 126.

[Note 6] The 1956 Plan was an approval not required (ANR) plan as indicated by the signature of the Littleton Planning Board on the plan.

[Note 7] The 1958 Plan was also titled Tahattawan Park Subdivision Showing Proposed Street lines, and shows subdivision roads throughout the subdivision. The ROW is shown as a part of the subdivision roadway system and is located between the Second Westby Lot, as hereinafter defined, and the Whitcomb Lot.

[Note 8] The Agreement allowed the Browns to construct such roadways incrementally, stating that before selling or transferring land on the proposed streets shown on [the 1958 Plan, the Browns] will construct and complete, . . . so much of the way leading from an existing public way up to an[d] including the land to be sold . . . . The subdivision (including its roadways) was never built.

[Note 9] The legal description of the Second Westby Lot was as follows:

SOUTHERLY by land marked Edge of Traveled Way, as shown on said plan, one hundred seventy-three and 79/100 (173.79) feet;

SOUTHWESTERLY by the curved line of Tahattawan Road, as shown on said plan, thirty-nine and 28/100 (39.28) feet;

NORTHERLY by land now or formerly of Gordon E. Westby, as shown on said plan, two hundred and 00/100 (200.00) feet; and

EASTERLY by other land of the grantor.

[Note 10] The deed margin contains the following reference: See Plan in Record Book 12541 Page 024. Such plan was not in the summary judgment record, and this court requested that the plan be submitted. The Lelievres furnished such plan to this court on October 4, 2010. It is a plan titled Land in Littleton, Mass. Owned by Wilbur M. Brown and Mary H. Brown dated October 1, 1973 and prepared by Harlan E. Tuttle, Surveyor. Such plan does not show any area involving the ROW, and there is no reference to any subdivision lots or subdivision roads on such plan.

[Note 11] The legal description of Lot A in the Caouette Deed does not reference the ROW. This includes the strip of land that provides Lot A access with Tahattawan Road; the northerly boundary of such land is described as running South 88 [degrees] 34' East a distance of One Hundred Seventy-three and 79/100 (173.79) feet to a point; and the southerly boundary of such land read, running along said Shields land, now or formerly, North 88 [degrees] 34' West a distance of One Hundred Fifty-nine and 85/100 (159.85) feet, to a point as shown on said plan.

[Note 12] The summary judgment record is unclear how Janet H. Westby obtained Gordon E. Westbys interest in the First Westby Lot.

[Note 13] Bernard A. Caouette and Frances S. Caouette conveyed Lot A to Barbara E. Boothby and Cathy Kristofferson by deed dated April 17, 1992, and recorded with the Registry at Book 21955, Page 27. The summary judgment record does not disclose how title was transferred from Bernard A. Caouette to Bernard A. Caouette and Frances S. Caouette.

[Note 14] The parties adverse possession and prescriptive rights claims are not part of this summary judgment motion.

[Note 15] The summary judgment record indicates that in 1958 the Browns had not deeded out any of the Subdivision Land which was not bounded by Tahattawan Road.

[Note 16] The legal description of the Second Westby Lots southerly boundary references the Traveled Way.

[Note 17] The Derelict Fee Statute was effective January 1, 1972, so there is no need to address the retroactive effect of the statute.

[Note 18] Because the current owner of the Whitcomb Lot is not a party to this action, I cannot rule on Plaintiffs rights in the ROW relative to the Whitcomb Lot. That said, a brief review of the Whitcomb Deed is instructive.

[Note 19] Neither the ROW nor the 1958 Plan were included in the legal description of the Subdivision Land in the deed from the Kotanchiks to the Flannerys.

[Note 20] It should be noted that the Lelievres raised the theory of easement by necessity in their counterclaim.